Chinese Civil Law Legal Thinking

Some scholars said that: the Chinese usually live without law and the traditional china is a society without law. What they mean the law here is about state law. But as we all know that the society is an organic system which is made up of many parts and it develops through the regulations by itself. Any society needs regulations in order to maintain the public order because the society can't exist and develop without orders and organizations. They are the character of a society and the laws and regulations are their forms of expression. Following the developing of a society, the laws and regulations have great influences on the existing and development of a society. If there were no laws and regulations, there would be no organizations and no orders.In china, family that is characterized in paternal line and regionalism is the primary unit of a society. Following the development of the history, this blood relationship has displayed and precipitated in the forms of patriarchal clan system and has influenced the Chinese law greatly. It is well know that the state law is the most important regulation on family. But in a long history, the folk law that is characterized in blood relationship has a special function in keeping the public order. So it is no surprise that some scholars said that in China, the people settled the disputes firstly considering 'affection', secondly 'rite', thirdly 'reason'and last'law'. So in China, there are at least two kinds of laws in maintaining the order of life and production. One is the state law or "the main tradition" that regulate every aspects of life. The other is folk law or "the subordinate tradition" that adjust people's behavior naturally. When state law has conflict with folk law, the latter usually has an advantage. When the state law can't take effect in some fields, the folk law has a great influence on it. So when we do research on Chinese law culture, we should not put our eyes on the state law only. We need pay more attention on folk law which comes from the people's life, work etc. This essay is a little more than 40 thousands of words. It is divided into two parts. In the first part, the author tries to give a fundamental explanation on folk law including its definition, character and its law of the development of history. In second part, the author put emphasis on the relation between folk law and state law, judicature. In this essay, the author takes a writing method that is integration of theory with the practice and gives many cases to further explaining the function of the folk law. The purpose of this essay is to appeal that we should assimilate nutriment and make use of folk law to help construct our country by rule of law.